People ex rel. Reynolds v. City of Brooklyn , 1867 N.Y. App. Div. LEXIS 136 ( 1867 )

J. F. Barnard, J. (dissenting.)

The commissioners to estimate the expenses of widening Main street in the city of Brooklyn, and to assess the damages therefrom on such property as they thought benefited thereby, according to the provisions of chapter 131 of Session Laws of 1861, were regularly and legally appointed. This was decided in The People ex rel. Wetmore v. The City of Brooklyn; and although the report was reversed for the reason that they had improperly assessed for benefits a ferry franchise, the reversal had no such result as the removal of the commissioners so appointed. It destroyed the assessment; and still left the commission to which the law sent the estimate and assessment for this improvement. An entire new report was necessary, but it was to be made by this commission. The legislature widened this street by law. It directed the county court of Kings county, or the special term of the Supreme Court, to appoint three disinterested persons as commissioners, upon the application of any person interested in the improvement. All other laws in reference to opening streets in Brooklyn were made applicable to the proceedings to be taken by this commission. The law widening Main street provided for the appointment of but one set of commissioners, by its own provisions. According to the provisions of other laws then and now existing, a new commission is provided for only in case the county court, or the special term of this court, upon application to confirm their report, refuse, and then they may send it back for correction; either to the same or other commissioners. Until the commissioners are removed by one of these courts, the appointment must stand. No application for a new appiontment can be made while it does stand, either to the county court or the Supreme Court. The power has been exercised. The legislative act is not to be annulled because a mistake has been made by the commissioners in a principle' of. their assessment. They are not functi officio until they have made the assessment according to law, which they have been appointed to make. This being the only question raised by the writ of certiorari, I think the report of the commissioners should be affirmed, with costs.

[Dutchess General Term, May 13, 1867.

Proceedings reversed.

Scrugham, Gilbert and J. F. Barnard, Justices.]